2005 (8) TMI 513

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..... acts of the case are that the officers of the Central Excise Department visited the factory of the appellants and on stocking taking found that there was shortages of finished goods and inputs as compared to the statutory record. Based on these finding a show cause notice was issued to the appellant demanding the duty on the shortage of finished goods as well as on the inputs. The appellants repli .....

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..... anufacture of finished goods and also the fact that the goods in process were not considered by the officers, adjudicating authority, and the appellate authority. The learned Counsel also submitted that the error or the shortage of the inputs was also due to the reason that the entries in the statutory books of account i.e. RG-23A, Pt. I was not updated for 4/5 days. He also relies upon the decisi .....

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..... of their claim. He relies upon the following decisions :- (1) 1999 (108) E.L.T. 611 (S.C.) - Madras Petro-Chem Ltd. v. CCE, Madras (2) 2004 (167) E.L.T. 385 (S.C.) - Sony India Ltd. v. CCE, Delhi (3) 2004 (169) E.L.T. 341 (Tri. - Del.) - CCE, Indore v. Caps Caps (P) Ltd. 4. I have considered the submissions of both the sides and perused the record. It is seen from the show ca .....

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..... rt were or would have been issued for the manufacture of the finished goods which were in the process, during the time of visit of the officers. Panchnama drawn by the officers do not show any stock of in-process material lying in the appellants unit at the same time the appellants have been right from the reply to the show cause notice stage and in the statement have been taking a stand that the .....

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..... ed beyond doubt. I rely upon the decision of this Tribunal in the case of Icycold Commercial Enterprises (supra) in which it is held that clandestine removal is a positive act and burden of proving is on the department - Note provable merely on conjectures and presumptions . The fact of clandestine removal in this case is not proved by the department and hence the ratio as laid down by this Tribu .....

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